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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 30 May 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 22



WAR CRIMES - In the Grand Chamber judgment in the case of Marguš v. Croatia the Court held that Croatian courts were right to bring war crime charges against an army commander nearly nine years after terminating first trial against him unanimously  (no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial) of the European Convention on Human Rights/ Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the Convention not applicable. The case of Marguš v. Croatia (application no. 4455/10) concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular: that his right to be tried by an impartial tribunal and to defend himself in person had been violated; and, that the criminal offences of which he had been convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act. 

Article 4 of Protocol No. 7


The Court acknowledged that in both sets of proceedings Mr Marguš had been prosecuted for the same offences, namely the killing of four persons and the alleged wounding of another person in November and December 1991. The Court further noted that there were two distinct situations as regards the charges brought against Mr Marguš in the first set of proceedings which were also the subject of the second set of proceedings. First, in January 1996, the prosecutor had dropped the charges concerning the alleged killing of two persons in December 1991. Second, in June 1997, the trial court in the first set of 4 proceedings had, on the basis of the General Amnesty Act, terminated the proceedings in respect of the alleged killing of two people and wounding another in November 1991.


In its case-law, the Court had already held that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 did not find application in that situation. Accordingly, the discontinuance of the proceedings by the prosecutor concerning the killings in December 1991 did not fall under Article 4 of Protocol No. 7. It followed that Mr Marguš’ complaint as regards his conviction of those offences was incompatible with the Convention and therefore inadmissible.


As regards his complaint concerning the remaining charges, the Court noted that Mr Marguš had been granted amnesty for acts which amounted to grave breaches of fundamental human rights, namely the intentional killing of civilians and inflicting grave bodily injury on a child. The allegations in the criminal proceedings against him had involved these civilians’ right to life protected under Article 2 of the Convention and, arguably, their rights under Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. The Court underlined that Articles 2 and 3 ranked as the most fundamental provisions in the Convention. In its case-law the Court had held that where a State official was charged with crimes involving torture or ill-treatment, it was of key importance that criminal proceedings and sentencing were not time-barred and that the granting of an amnesty or pardon should not be permissible. While Mr Marguš’ case did not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No. 7, the Court underlined that the Convention and its Protocols had to be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between their various provisions.


Furthermore, the Court observed that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable. It was true that so far no international treaty explicitly prohibited the granting of such amnesties. However, the possibility for a State to grant an amnesty in respect of grave breaches of human rights might be circumscribed by treaties to which the State is a party. The Court noted, in particular, that the Inter-American Court of Human Rights had found that granting amnesties in respect of perpetrators of war crimes and crimes against humanity was incompatible with States’ obligations under international law to investigate and prosecute war crimes. Several international conventions, in particular the Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, provided for a duty to prosecute such crimes. Moreover, various international bodies, in particular the United Nations Commission on Human Rights and the Inter-American Commission on Human Rights, had issued resolutions, recommendations and comments concerning impunity and the granting of amnesty in respect of grave breaches of human rights, generally agreeing that amnesties should not be granted to those who had committed such violations of human rights and international humanitarian law.


The Court therefore considered that by bringing a fresh indictment against Mr Marguš and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of those international mechanisms and instruments.


EXPERIMENTAL TREATMENT - In its decision in the case of Durisotto v. Italy the Court of Human Rights by a majority declared the application inadmissible. It held that a properly reasoned refusal by the courts to authorise access to experimental treatment was neither arbitrary nor discriminatory. The case concerned the refusal by the courts to authorise the applicant’s daughter to undergo compassionate therapy (experimental treatment known as the “Stamina” method) to treat her degenerative cerebral illness. The therapy was undergoing clinical trials and, under a legislative decree, was subjected to restrictive access criteria. The Court held that the prohibition on access to this therapy, imposed by the court in application of legislative decree no. 24/2013, pursued the legitimate aim of protecting health and was proportionate to that aim. Sufficient reasons had been given for the court’s decision, and it had not been arbitrary. Indeed, the therapeutic value of the “Stamina” method had, to date, not yet been proven scientifically. Nor could the Court conclude that the justice system’s refusal to grant her permission had been discriminatory.


CRITISM OF JUDGES - In the case of Mustafa Erdoğan and Others v. Turkey the Court held that criticism by a law professor of Turkish judges for their dissolving a political party was within acceptable bounds (violation of Article 10 (right to the freedom of expression). The case concerned the complaint by a law professor, editor and publisher that they were ordered by the Turkish courts to pay damages to three judges of the Constitutional Court for insulting them in a journal article which reported on a decision dissolving a political party. The article was published in a quarterly law journal in 2001.

The Court stated that members of the judiciary acting in an official capacity should expect to be subject to wider limits of acceptable criticism than ordinary citizens. Both the context (a virulent public debate on the Constitutional Court’s rulings) in which the article had been written and the form (a quasi-academic journal, not a popular newspaper) used had not been given sufficient consideration by the national courts in the defamation proceedings against the applicants. The Court underlined the importance of academic freedom and, in particular, academics’ ability to freely express their views, even if controversial or unpopular, in the areas of their research, professionalexpertise and competence. As to the content of the article, whilst some of the remarks made were harsh they were largely value judgments, set out in general terms, with sufficient factual basis. They could not be considered gratuitous personal attacks on the three judges. Accordingly, the Court determined that the reasons given, namely the judges’ right to be protected against personal insult, to justify interfering in the applicants’ right to voice criticism on a topic of general interest were not sufficient to show that that interference had been “necessary in a democratic society”.


DISMISSAL OF A JUDGE - in the case of Baka v. Hungary the Court held that the termination of the President of Hungarian Supreme Court’s mandate for criticising legislative reforms breached the Convention (violations of Article 6 § 1 (right of access to court) and Article 10 (freedom of expression).) The case concerned the premature termination of Mr Baka’s mandate as President of the Supreme Court of Justice of Hungary (the Supreme Court) and his lack of access to court to challenge the termination. The Court held that Mr Baka’s access to court had been impeded, not by express legislative exclusion, but rather by the fact that the premature termination of his mandate had been written into the new Hungarian Constitution itself and was therefore not subject to any form of judicial review. It also found that Mr Baka’s dismissal had been due to the criticism he had publicly expressed of government policy on judicial reform when he was President of the Supreme Court, underlining that the fear of sanction, such as losing judicial office, could have a “chilling effect” on the exercise of freedom of expression and risked discouraging judges from making critical remarks about public institutions or policies.


PRISONER’S RIGHT TO EDUCATION - In the case of Velev v. Bulgaria the Court that the reasons for refusing to enrol remand prisoner in prison school were not clear. (violation of Article 2 of Protocol No. 1 (right to education). The case concerned access to education for a remand prisoner. Mr Velev alleged that he had not been allowed to pursue his secondary education while being detained on remand in Stara Zagora Prison for 29 months. The Court recalled that Article 2 of Protocol No. 1 does not oblige Contracting States to organise educational facilities for prisoners where such facilities are not already in place. Where such a possibility is available, as is the case in Stara Zagora Prison, there being a prison school, it should not be subject to arbitrary and unreasonable restrictions. However, the Government had provided neither practical reasons, for example based on lack of resources at the prison school, nor a clear explanation as to the legal grounds for refusing to enrol Mr Velev in the prison school. Indeed, this lack of clarity was reflected in the relevant statutory framework itself. The Court therefore found that the refusal had not been sufficiently foreseeable, had not pursued a legitimate aim and had not been proportionate to that aim, underlining in particular the value of providing education in prison, both for the individual prisoner and the prison environment and society as a whole.
 "34.  While the Court is aware of the recommendations of the Committee of Ministers to the effect that educational facilities should be made available to all prisoners (see paragraphs 21-24 above), it recalls that Article 2 of Protocol No. 1 does not place an obligation on Contracting States to organise educational facilities for prisoners where such facilities are not already in place (see Natoli v. Italy, no. 26161/95, decision of the Commission of 18 May 1998, unreported and Epistatu v. Romania, no. 29343/10, § 63, 24 September 2013). However, the present applicant’s complaint concerns the refusal to him of access to a pre-existing educational institution, namely the Stara Zagora Prison School. As noted above, the right of access to pre-existing educational institutions falls within the scope of Article 2 of Protocol No. 1. Any limitation on this right had, therefore, to be foreseeable, to pursue a legitimate aim and to be proportionate to that aim (see paragraph 32 above). Although Article 2 of Protocol No. 1 does not impose a positive obligation to provide education in prison in all circumstances, where such a possibility is available it should not be subject to arbitrary and unreasonable restrictions.
35.  The Court finds it open to doubt whether the restriction on the applicant was sufficiently foreseeable for the purposes of Article 2 of Protocol No. 1. The relevant legislative framework provided that convicted prisoners aged 16 or older had a right, on request, to be included in educational programmes and that, in the absence of clear rules to the contrary, the provisions regarding convicted prisoners were to apply equally to remand prisoners. The only express provision relating to the rights of remand prisoners to education was to the effect that the prison authorities should “encourage” the participation of remand prisoners in prison educational programmes (see paragraphs 15-19 above).
36.  The lack of clarity in the statutory framework was reflected in the fact that, during the domestic proceedings and the proceedings before this Court, varied reasons were given by the national authorities for refusing the applicant’s request to enrol in the school. His request was refused by Execution of Punishments Directorate of the Ministry of Justice on the ground that “once convicted”, he would be transferred to a prison for “recidivists”, and that in the meantime it would breach the statutory requirement to keep “recidivist” and “non-recidivist” prisoners apart if he were allowed to mix with “non-recidivists” in the prison school (see paragraph 7 above). Subsequently, the Prison Governor also refused his request on similar grounds (see paragraph 8 above). When the applicant appealed against the decision of the prison authorities to exclude him from the school, the Stara Zagora Regional Court found that he could not be classified as a “recidivist” and ordered the Prison Governor to admit him to the school. On the further appeal of the Prison Governor, the Supreme Administrative Court quashed the Regional Court’s judgment, on the ground that the applicant was not entitled to take part in the prison’s educational programme because the right to education was envisaged by the relevant legislation as applying solely in regard of persons deprived of liberty as a result of a final conviction and not in regard of those detained on remand (see paragraph 12 above).
37.  In addition, during the proceedings before this Court, the Government relied on three different grounds to justify the applicant’s exclusion from the school. First, they contended that, as a remand prisoner, it was not appropriate that he should attend school with convicted prisoners. Secondly, they argued that, as a remand prisoner serving an indeterminate period of pre-trial detention, it was inappropriate for him to attend the school which was intended for convicted prisoners serving terms of imprisonment of 12 months or more. Thirdly, they reasoned that since the applicant risked being sentenced as a “recidivist”, it would not have been in the interests of the convicted, “non-recidivist” prisoners attending the school for the applicant to have been allowed to attend.
38.  For the Court, it is noteworthy that the Government have not supported their arguments with any evidence relating to the conditions applicable in Stara Zagora Prison. The need to protect the applicant by keeping him apart from convicted prisoners, because of his status as a remand prisoner, was not a ground relied on by the prison authorities in rejecting the applicant’s requests. Moreover, it was clear from the applicant’s many requests to be allowed to attend the school that he had no objection to participating in this activity together with convicted prisoners. In the material before the Court, there is no evidence to show that remand prisoners would have come to any harm within the controlled and supervised environment of the classroom or that remand prisoners were detained separately from convicted or “recidivist” prisoners within Stara Zagora prison and, if so, whether this segregation applied to all aspects of the regime within the prison.
39.  The second ground relied on by the Government was the indeterminate nature of detention on remand and the requirement in national law for prisoners to be serving sentences of one year or more before being able to enrol in prison schools. However, the Government have not explained why this was a necessary condition for admission to a prison school. With regard, specifically, to remand prisoners such as the applicant, the Court does not consider that the fact that the ultimate length of their pre‑trial detention is uncertain at the start should be used as a justification for depriving them of access to educational facilities, save perhaps in cases where it is clear for some reason that the detention will be of short duration. Moreover, the Government have not provided the Court with any statistical information as regards the availability of resources at the school such as to justify, for example, a policy of concentrating limited resources on those prisoners serving the longest sentences.
40.  Finally, with regard to the last ground relied on by the Government, namely the need to keep the applicant apart from other prisoners because of the risk that he would be sentenced as a “recidivist”, the Court does not consider this was a legitimate reason, since during the time in question he was an unconvicted prisoner and entitled to the presumption of innocence.
41.  The Court does not, therefore, consider any of the grounds relied on by the Government to be persuasive, particularly as they are unsupported by any evidence relating to the precise modalities of providing access to education at the Stara Zagora prison school. On the other side of the balance must be set the applicant’s undoubted interest in completing his secondary education. The value of providing education in prison, both in respect of the individual prisoner and the prison environment and society as a whole has been recognised by the Committee of Ministers of the Council of Europe in its recommendations on education in prison and on the European Prison Rules (see paragraphs 21-24 above).
42.  In the instant case the Government provided neither practical reasons, for example based on lack of resources at the school, nor a clear explanation as to the legal grounds for the restriction placed on the applicant. In these circumstances, on the evidence before it, the Court does not find that the refusal to enrol the applicant in the Stara Zagora Prison School was sufficiently foreseeable, nor that it pursued a legitimate aim and was proportionate to that aim. It follows that there has been a violation of Article 2 of Protocol No. 1 in this case."
Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

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